Bourne v. Manley, 8807

CourtCourt of Appeal of Missouri (US)
Citation435 S.W.2d 420
Docket NumberNo. 8807,8807
PartiesKaren E. BOURNE, a minor, by her mother and next friend, Dorothy W. Bourne, and Joe Bourne and Dorothy W. Bourne, Plaintiffs-Respondents, v. Sandra MANLEY, Administratrix of the Estate of John W. Manley, Jr., deceased, and Linda Bradshaw, Defendants, MFA Mutual Insurance Company, a corporation, Garnishee-Appellant.
Decision Date04 December 1968

Page 420

435 S.W.2d 420
Karen E. BOURNE, a minor, by her mother and next friend,
Dorothy W. Bourne, and Joe Bourne and Dorothy W.
Bourne, Plaintiffs-Respondents,
Sandra MANLEY, Administratrix of the Estate of John W.
Manley, Jr., deceased, and Linda Bradshaw, Defendants,
MFA Mutual Insurance Company, a corporation, Garnishee-Appellant.
No. 8807.
Springfield Court of Appeals, Missouri.
Dec. 4, 1968.

Page 421

Elroy S. Thomas, Buehner & Thomas, Joplin, for garnishee-appellant.

Douglas & Douglas, Neosho, for plaintiffs-respondents.

STONE, Judge.

Garnishment. Upon trial in the Circuit Court of Jasper County on April 25, 1967, Karen E. Bourne, a minor, and Joe Bourne and Dorothy W. Bourne, her parents, as plaintiffs, obtained a judgment in the aggregate sum of $44,500 against Sandra

Page 422

Manley, Administratrix of the Estate of John W. Manley, Jr., deceased, and Linda Bradshaw, as defendants, for damages arising out of injuries sustained by plaintiff Karen in a vehicular collision about 1 A.M. on March 10, 1966, near Joplin, Missouri, involving a 1962 Ford automobile owned by Laurence Bradshaw and Mrs. Pauline Bradshaw, and being driven at the time of accident by their daughter, defendant Linda then sixteen years of age, in which plaintiff Karen was riding as a passenger. An automobile liability policy of MFA Mutual Insurance Company, issued ot Laurence Bradshaw as the named insured and in effect on the date of accident, obligated MFA Mutual to 'pay on behalf of the insured all sums (within the policy limits of $10M/$20M/$10M) which the insured shall become legally obligated to pay as damages' because of bodily injury or property damage 'caused by accident and arising out of the ownership, maintenance, or use of the described automobile,' to wit, the 1962 Ford. That portion, here material, of the so-called omnibus clause of the policy provided that 'the following are insureds . . . with respect to the described automobile, (1) the named insured and, if an individual, his spouse, (2) any other person using such automobile with the permission of the named insured or his spouse, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission . . ..'

Acting under a general execution issued on the aforesaid judgment, plaintiffs initiated this garnishment proceeding against MFA Mutual, as garnishee. Rule 90; Chapter 525. (All references to rules are to the Supreme Court Rules of Civil Procedure, V.A.M.R.; and all statutory references are to RSMo 1959, V.A.M.S.) The sole issue in the jury-waived trial in the garnishment proceeding was as to whether or not defendant Linda was, at the time and place of accident, using the Ford with the requisite permission. After taking the case under advisement, the trial court filed a written memorandum, in which he concluded 'that the use of the car on the night of the accident was with the permission of Mrs. Bradshaw.' On the same day, judgment was entered in favor of plaintiffs Bourne and against garnishee MFA Mutual in the sum of $10,000, garnishee's maximum policy liability for bodily injury to one person, and in the additional sum of $142.22, the court costs in the damage suit. Upon this appeal by garnishee, we have appellate jurisdiction because the amount in dispute, exclusive of costs, is less than $15,000. Art. V, Secs. 3 and 13, Const. of 1945, V.A.M.S.; § 477.040; McGarrah v. Stockton, Mo.App., 425 S.W.2d 223, 225(1).

It is not clear whether the trial court's judgment rested upon a finding of express or implied permission, and on appeal counsel for plaintiffs-respondents simply assert that defendant Linda 'had either express or implied permission.' (Except as is otherwise specifically stated, all emphasis herein is ours.) There is no doubt but that permission under the omnibus clause may be either express or implied from the conduct of one authorized to give it (Varble v. Stanley, Mo.App., 306 S.W.2d 662, 666(4); Hartford Acc. & Indem. Co. v. List, Mo.App., 424 S.W.2d 761, 767), and that the judgment nisi should be affirmed if the trial court properly could have found for plaintiffs on either theory. Morris v. Western Cas. & Sur. Co., Mo.App., 421 S.W.2d 19, 21(1); Service Construction Co. v. Nichols, Mo.App., 378 S.W.2d 283, 290(12). Because of this and also because of the question as to the credibility of garnishee's witnesses, namely, defendant Linda and her mother, suggested by the trial court's memorandum (of which more anon), at the risk of painful tedium we enter upon an unusually detailed factual review including numerous testimonial excerpts.

At the time of accident, Linda's mother operated four rooming houses for college boys at Pittsburg, Kansas. Whether the

Page 423

Bradshaws lived in one of those houses was not shown in evidence, but it was established that the family was domiciled in Pittsburg. Although the record does not disclose the names and ages of all members of the Bradshaw menage, we do know that Linda lived with her mother and, from various testimonial fragments, it is fairly inferable that, on and prior to the date of accident, the husband and father Laurence Bradshaw, as well as a son Larry of legal driving age and other younger children, also resided in the same household. However, the import of the evidence is that the major responsibility for supervising and rearing Linda had fallen upon and had been assumed by her mother. Within the year after the accident under consideration, Mr. and Mrs. Bradshaw were divorced; and he did not testify at the subsequent trial in the garnishment proceeding.

Plaintiff Karen and defendant Linda became friends in 1964, their freshman year in high school, when the Bradshaws moved to Pittsburg. During a portion (not fixed in evidence as to dates or duration) of the subsequent period to the time of accident in March 1966, the Bradshaws lived in St. Paul, Kansas, a small town some thirty-two miles northwest of Pittsburg; and on at least one occasion Karen visited Linda there. Mr. Bradshaw had employment (the nature of which was not disclosed) and drove his pickup 'almost exclusively,' so the 1962 Ford was left at home most of the time. To the evidence bearing upon Linda's use of tht automobile, we now attend.

When the Bradshaws came to Pittsburg in 1964, they had the 1962 Ford and also a 1957 Ford. According to plaintiff Karen, defendant Linda 'drove both cars quite frequently' until the summer of 1965, when the Bradshaws sold the 1957 Ford. Thereafter, she (Karen) had seen Linda drive the 1962 Ford 'regularly' and 'on many different occasions' and sometimes had ridden with her in that automobile. On 'the Sunday before Labor Day' 1965 (apparently while the Bradshaws were residing in St. Paul), Karen accepted the invitation of Mrs. Bradshaw 'to ride over to St. Paul to see Linda.' On that occasion, Linda told her mother 'we are going for a ride' and the two girls left in the 1962 Ford. Karen also testified that she knew 'of two occasions for sure' when Linda had driven the 1962 Ford to St. Paul--'she just told me she had driven the car over.' Having dropped out of high school after three months of her junior year, Linda was not in school in 1966 but 'was baby-sitting for some people around town.' During that period, Karen was still in school so 'I didn't see her (Linda) . . . during the day, but I did see her of an evening driving the car (the 1962 Ford).' The question, 'to your knowledge did she (Linda) have use of the (1962 Ford) every time she wanted it,' elicited Karen's unqualified affirmative response, 'yes.'

Plaintiff Joe Bourne, Karen's father, testified: 'Q. Had you ever seen Linda driving the (1962 Ford) in Pittsburg? A. Numerous occasions. Q. Over how long a period of time? A. Well, from the time probably that she and Karen started running around until this accident . . .. A couple of years anyway . . . Q. And during that time to your knowledge did Linda drive it regularly? A. Yes, sir.' Plaintiff Dorothy W. Bourne, Karen's mother, stated that she had seen Linda driving the 1962 Ford over a period of 'at least a year, two years--quite a long time,' and that, when Linda came to the Bourne home, 'she had the (1962 Ford) and drove it; she came up in the car when she came up there; she rarely walked up there, although they lived close; she usually came in the car.'

Defendant Linda, sixteen at the time of accident and eighteen when the case was tried on November 14, 1967, admittedly had driven the 1962 Ford on 'many different occasions.' Denying that she 'had the use' of the 1962 Ford whenever her mother was not using it, she said that 'if (mother) thought that I should have it she would let me have it.' Linda readily

Page 424

agreed that when, upon trial of the damage suit, she had been asked 'I take it you had the use of this (1962 Ford) whenever it was available there because it was your mother's car, (am I) correct on that,' her response was 'when she wasn't using it.' In the garnishment proceeding, she tendered the explanation that 'what I meant' was 'daddy didn't need the car so mother and I had access to the car; it wasn't as if daddy took it off to work with him.' At one point in her testimony, Linda stated that her use of the 1962 Ford was 'just when I went on (mother's) errands,' but shortly she offered the more detailed commentary that, after the Bradshaws sold the 1957 Ford, 'I would drive the '62 (Ford) . . . when mother wanted something done and I would say about five times out of all that time I got to take it out for enjoyment.' According to Linda, she had not driven the 1962 Ford without prior parental permission until she secretly had a key (hereinafter referred to as the extra key) made 'approximately a month before the wreck.' Thereafter, she had (so she said) sometimes employed the extra key to drive without parental permission or knowledge. When counsel sought to determine the nature and extent of...

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